Thursday, December 23, 2010

Thoughts on Secession, Part 1

On Monday, Hillsdale College history professor Dr. Paul Rahe (disclosure: I’ve heard him speak several times, but am not one of his students) marked the 150th anniversary of South Carolina’s vote to secede from the union by penning an op-ed in which he argues against the legitimacy of secession:
The legitimacy of secession has been debated ever since. In my view, secession was unlawful. There is provision in the United States constitution for ratification and for the admission of new states into the Union. There is no provision for secession.

It is true, of course, that – in ratifying the Constitution – Virginia specified “that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.” But this unilateral assertion on Virginia’s part is not and could not be an assertion of a legal right under the Constitution – which, even if viewed as a contract, recognizes no such right. Rather, it is a reassertion of the natural rights that underpin the right to revolution asserted in the Declaration of Independence, and it applies to the people of the United States and not to the state of Virginia or even the people of the state of Virginia as such.
Robert Stacy McCain objects to Rahe’s analysis, seeing in it disastrous implications:
Of course, this theory effectively abolishes the states, rendering them nothing but administrative jurisdictions of the unitary and all-powerful national government — the negation of federalism […]

Did these states, by ratifying the Constitution, thereby permanently forfeit their independence?  Is there nothing the federal government could do — no act of the president or Congress, no decision of the Supreme Court — that would justify any state in saying, “OK, you’ve gone too far now”?

It would seem that Paul Rauh answers that question in the negative, that he denies that the states have retained any shred of their original independence, that no state has any just recourse if its citizens should feel that the federal government has overstepped its rightful bounds.

The states are therefore no longer states in any meaningful sense, and we no longer in fact have a federal system of government, but rather one vast unified empire of 300 million subjects, with whatever vestiges of the “states” remain being subject to obliteration so soon as it suits a majority in Congress (or the Supreme Court) to do so.

Ideas have consequences, as Richard Weaver once famously observed, and so it is with the idea of the indissoluble union. (Evidently, it’s like La Cosa Nostra — once you join, there’s no quitting.) What we now have is a national government without any effective limit to its power, except so far as regular elections may have any limiting effect. But if this also fails and the advocates of an all-powerful national government should obtain a permanent majority, what remedy can there be under Rahe’s theory?
First, the notion of states as “nothing but administrative jurisdictions of the unitary and all-powerful national government” simply has no basis in Rahe’s words. To deny secession’s legitimacy is hardly to deny that the federal government’s powers are strictly limited, or that the states have rights and responsibilities in which the feds must not meddle. (Rahe did, for what it’s worth, write a book on the subject.)

Second, there are obvious recourses to injurious federal actions: the regular elections McCain references, the constitutional amendment process, and prior to the 17th Amendment's passage, the Senate also countered federal encroachment into the states. There’s also the judiciary, though admittedly that won’t be of much use to limited, constitutional government until we get serious about reining in judicial activism. (And all of the above is, of course, subject to the quality of those in office, but that’s unavoidable with any form of government.) I wouldn’t be so quick to discount the value of any of those means, and in the block quote at the top of McCain’s post, Rahe does give the states a “just recourse” when all else fails: the natural right of revolution. As the Declaration of Independence puts it:
[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness […] when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The standard pro-secession objection here is that a) revolution is extra-legal, meaning the government from which a state is separating has no legal obligation to let the state go; and b) revolution is a right possessed by individuals, not states. McCain seems to think that the American Revolution’s “dependen[ce] on the fortunes of war” is sufficient to invalidate the right of revolution. But so what? In principle, whether something is easy has no bearing on whether it’s true, and in practice, the prospects of the South’s “right” to secession were every bit as “dependent on the fortunes of war” as the War for Independence.

Granted, I can see where the other side is coming from, in that secession could theoretically be easier than revolution, and thus might be a more potent threat to an overreaching federal government. But secession’s supporters are overlooking a very big downside, which Abraham Lincoln’s First Inaugural Address makes clear. First, there are the logical problems inherent to the concept:
Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination […] If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
More importantly for our current purposes:
If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.   

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?   

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left […]

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.   

By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years.
While voters and states might rightly despise any given government action, as long as the political process remains open to them, their only just recourse lies within that process. To do otherwise is, in effect, to proclaim that one may pick and choose which laws to follow and which to ignore, a reversion to minority rule by which the few can dictate virtually anything to the many.  Indeed, if a state can legally break away from the nation, then what’s to keep a city from breaking away from a state, or an individual from a city?

At the end of the day, good government is ultimately dependent upon enough of the people eventually coming to their senses to set things right. This remedy is always uncertain, and often slow and unsatisfying, so it’s understandable that people would seek out some extra insurance for when the will of the people lets them down. But while it’s not inconceivable that secession could function as that insurance in some cases, nor is it clear that secession would be any more viable than revolution, and the logic of secession could actually do much more harm than good, by undermining the respect for the rule of law which is essential to good government.   

Ultimately, though, as McCain says:
The fundamental question is, “Who ratified the Constitution, and what sort of union was created by that ratification?” And the answers to those questions are not, nor can they be, a matter of mere opinion. There are historical facts to be considered, and which Rahe glosses over.
McCain glosses over some of those historical facts, too. Those facts will be the subject of Part 2.

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